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Is Direct Election of Premiers a Viable Option for the NWT?

 A discussion paper by Senator Nick Sibbeston

During and since the recent territorial election, some concerns have been raised about the method of selecting the Premier of the NWT – that is, selection by MLAs through secret ballot.  The alternatives that have been proposed generally fall into two camps. 

The fact that three Premiers in a row were acclaimed in their own ridings has heightened the concern over the legitimacy of the process.[1]

Party politics

The first would be an evolution towards party politics as exists in federal and provincial legislatures and Yukon Territory. Although several attempts have been made to run candidates under a party banner in the NWT, none have succeeded in electing MLAs. Still, this could change.  Perhaps, in the next election, one or more groups will organize and run as parties.  If a party elected sufficient members, they could form a government and the leader of the winning party would become Premier. It might be a majority government or, with support from other members – in other parties or as independents – a minority. 

The Canadian Way

Before moving onto the second alternative, I want to make a few points about the Canadian system of election.  Voters do not vote directly for the Prime Minister or Premier; they vote for a party candidate in their own riding.  The leader of the party that wins the most seats usually, but not always, forms the government and becomes PM or premier.[2]  In fact, the public has little or no say in the selection of party leaders; this is done by the members of each party.[3]

Parties have become such a way of life in most parts of Canada, that it is the party label – rather than the leader or the local candidate – that means the most to voters.  Many studies show that the most important factor in deciding how someone votes are 1) the party and its policies, 2) the leader, and 3) the local candidate or issues – in that order.[4]  However, in smaller jurisdictions, like Yukon or PEI, parties are less important and the role of the leader and local candidates play a bigger role.  Which is why some people feel the consensus system works better in smaller places.

The most important aspect of the Canadian (or Westminster) system is that the Prime Minister or Premier is the person who can command the support of the majority of members of Parliament or the legislature (commonly called “having the confidence of Parliament).  In our indirect system, it is Parliament, not the people, who pick the Prime Ministers. Usually, those individuals are the people who lead their party through an election or who are chosen by party members to replace a retiring PM but, even there, there are exceptions.[5] This may not seem like the most democratic system but it is the one we have and one which has worked reasonably well.

When thought of this way, the current system of election of the Premier by MLAs is not inconsistent with the Westminster tradition.  The Legislature expresses confidence in a Premier and he or she remains in that office until the Legislature loses confidence (or the Premier is defeated in his own seat by local voters).  What is actually inconsistent with Parliamentary traditions is that the Legislature, not the Premier, also selects Ministers – but that is another issue.

Direct Premier Elections

The second alternative being proposed is that the Premier be elected directly by voters across the NWT.  In some proposals, prospective Premiers would declare their interest in advance. They would then run both in their own riding to become MLA and across the territory to become Premier.  

In other proposals, the Premier candidates would run only in the territorial-wide election and then would either form a separate executive (like a President) or sit with his fellow MLAs as first-among-equals (like a Mayor).  All of these methods of election, while democratic, pose certain practical and, in some cases, constitutional problems that would need to be addressed.

To start with the practical, I see two serious objections to the first approach.  Firstly, it would be difficult and expensive for individuals to run a territorial-wide election campaign – especially if they have a tough fight in their own riding.  Clearly, there could be an advantage to candidates from Yellowknife, who might win by campaigning only in the city and closest communities.  If this happened two or three elections in a row, it could be very divisive. 

Secondly, suppose a candidate won the Premiership but lost his or her own seat. This has actually happened in Canadian elections – where a party won an election but the leader lost his seat.[6]  In those cases, a party member in a safe riding resigns and the leader runs in a by-election.  That would not be an option in the NWT without parties.

The second approach might be more practical.  It would still be difficult and costly to run a territory-wide campaign but at least the candidate wouldn’t have to worry about their own seat.  The Yellowknife bias would still exist – though candidates would probably work harder to get a broad mandate.  And, as technology advances, the ability of candidates to run an effective territory-wide campaign through social media or with local organizers may improve.

So, practical difficulties might be overcome.

The major problem with any direct election of Premier is that it is inconsistent with Canadian constitutional traditions.  The election itself is problematic and what happens after the election is even worse.

As noted above, we, like every other country that follows the Westminster system[7], elect our Prime Ministers and Premiers indirectly.  We elect an MP or MLA in our constituency and, generally, the leader of the party with the most seats becomes PM or Premier.  And as for our head of state – well, no one votes for the Queen.

Could the NWT have a different system from the rest of Canada and, if so, what might it look like?

A First-Among-Equals

A system where the Premier is elected to the Legislative Assembly in a territory-wide vote while other MLAs are elected in individual constituencies would be similar to the ward system used by larger municipalities in southern Canada. The Mayor in those cities is a ‘first-among-equals’ with only one vote on council but with the democratic mandate to act as spokesperson for the entire city and to set the agenda for City business. Although, in most cities, individual councillors are appointed to head up committees (often by the Mayor), it is the Mayor who directs the entire bureaucracy, usually through a City Manager, to whom all other department heads report.

However, municipal governments are generally ‘creatures’ of provincial governments and operate according to provincial government’s directives.  Their by-laws and even very existence is subject to the Minister’s control. This is terribly reminiscent of the way it used to be when the Minister of DIAND, through the Commissioner, ran the NWT.[8] While I assume we wouldn’t go back to those bad old days, I do think this type of government would be a step back for our territory.  Moreover, the Premier in this system would not be directly accountable to the Assembly. It is almost impossible for a Council to remove a Mayor[9] (and, when it does happen, it leads to a by-election for Mayor as opposed to a general election).  And, who, in this model would appoint ministers and what would their role be?

The Premier as President

The other alternative – to have the Premier elected directly but sit outside the Assembly – would be nothing like any Canadian system.  It would resemble, instead, the American government.  The USA elects its President directly (not actually, but close enough for this paper[10]) while having the House of Representatives elected from districts. They also have a Senate but let’s leave that aside for the sake of simplicity. The President does not sit in the House (or Senate). His Cabinet are not elected representatives but are appointed from outside government to oversee the bureaucracy. The President cannot be defeated by the Congress though he can be impeached (it has happened only twice – though in neither case did the President lose his job[11]). The president can sometimes propose legislation but only those Bills passed by Congress become law. If the President doesn’t like legislation or any tiny part of it, his only option is to veto it – which Congress can overrule with a two-thirds vote.

As you can see from this brief description, this system is nothing like any we have in Canada.  While it may seem more ‘democratic,’ it is not clear that it is more responsive or accountable to the people.

So the three alternatives to the current consensus system are:

·         A party system – completely consistent with Canadian systems but so far undesired by NWT electors;

·         A directly elected Premier who also sits as an MLA – much like a municipal system – which appears to be a step back and creates accountability problems

·         A directly elected Premier who acts as a President – which may be unconstitutional and as, we’ve seen in the USA, can be highly confrontational

Other Options

Are their other options? Perhaps but if they are to serve as effectively as the one we have, they need to be carefully designed and acceptable to the majority of people in all regions of the territories.

Minimally, they should:

1.      Increase the involvement of electors and the legitimacy of the government;

2.      Ensure that the government reflects most regions and not just a few;

3.      Provide a means to hold the Premier to account between elections;

4.      Be acceptable to the people of the NWT and consistent with Canadian law

5.      Find a balance between public and aboriginal governments.

There may be other criteria as well. A good place to start in re-thinking consensus might be to return to the work that was done in the 1980s by the Western Constitutional Forum[12]. The WCF spent a lot of time and money in advance of division, consulting with Northerners and trying to envision what a future western territory would look like.  Many of the issues and concerns were the same as those being expressed today.  As a starting place for further discussion, we could do worse than considering what conclusions they reached.

Whatever process is used, if any, to change the way Premiers are elected should be as open and inclusive as possible, involving leaders and citizens from across the NWT.

[1] No one has said that MLAs who are acclaimed cannot serve in Cabinet.  Moreover, those MLAs who are acclaimed still had to be nominated and, it could be argued, were acclaimed because no one in their riding thought they could do a better job.

[2] In 1925, the Liberals, under King, formed the government, even though they had fewer votes and fewer seats than the Conservatives, under Meighen. This occurred because other parties in the House supported King (if only briefly).  In 1985, the Liberals in Ontario won more votes but fewer seats than the PCs but formed the government with the support of the NDP after the Conservatives lost a confidence vote a month after the election.

[3] The exception is in Alberta, where anyone can become an instant Progressive conservative and vote in leadership races. Both Ed Stelmach and Alison Redford were selected this way.

[4] This can lead to some interesting results.  For example, in 1979, the Conservatives under Joe Clark won the most seats (only a few short of a majority), even though the Liberals, under Trudeau, had a higher percentage of the vote. 

[5] Just ask Margaret Thatcher.  Her own MPs revolted against her leadership and replaced her with John Major – who then became Prime Minister.

[6] The Rt. Hon. William Lyon Mackenzie King, while Prime Minister from October 23, 1935 to November 14, 1948, lost his Prince Albert, Saskatchewan seat in the June 11, 1945 general election. King did not resign from office and was re-elected to the House of Commons in an August 6, 1945 by-election for the riding of Glengarry, Ontario.

[7] many though not all Commonwealth countries

[8] The NWT Act still vests all power in the Commissioner but practice has clearly established the territorial government as province-like in most of its powers and operations.

[9] Usually only if he has committed a crime or failed to regularly attend council meetings

[10] The president is actually elected by the Electoral College. As a result, the President can win even if his opponent has a greater share of the popular vote. George Bush defeated Al Gore (271 to 266 Electoral College votes) even though Gore received over half a million more actual votes.

[11] Andrew Jackson and Bill Clinton were both impeached by the House of Representatives but were not convicted by the Senate in the subsequent trial.

[12] Additional work was done in the 1990s by the Constitutional Forum headed by Jim Bourque in the lead-up to the division of the NWT and the creation of Nunavut.